Friday, May 27, 2016

Common Sense And The Death Penalty

Connecticut’s Supreme Court has decided that the state
cannot execute the eleven convicted killers sentenced to death awaiting
punishment on Death Row. Chief State's
Attorney Kevin Kane ran up a white flag shortly after the decision had been
rendered. According to a story in the Hartford Courant, Mr. Kane said the
eleven Death Row inmates would be re-sentenced to life in prison without benefit
of parole.

The High Court’s earlier judgment on the death penalty was a sand castle built on sand: So said Chief
Justice Chase T. Rogers, who last August wrote a stinging dissent following the
decision of the court. The court at that time ruled that executing a Death Row inmate
"would violate the state constitutional prohibition against cruel and
unusual punishment." The death penalty, the court noted, “no longer
comports with contemporary standards of decency." Three justices – Rogers,
Justice Carmen E. Espinosa and Justice Peter T. Zarella offered a stinging rebuke:
Every step of the majority opinion, the three dissenting justices wrote, was
“fundamentally flawed.”

Connecticut Commentary noted, following the abolition of the
death penalty by the General Assembly, that the pending executions should not
be permitted.

However, Connecticut Commentary did not argue that the
retention of the death penalty would offend “contemporary standards of
decency.” Only a few years before, the General Assembly, Republicans dissenting,
had reinforced contemporary standards of decency when the legislature decided
to retain the death penalty for the eleven Death Row inmates.

The legislature overturned the death penalty prospectively
only, which amounted to a declaration that the death penalty itself did not
violate contemporary standards of decency.

In fact, General Assembly abolition was driven by political cowardice; the bill
abolishing the death penalty was highly political. The General Assembly could
not have abolished the death penalty in two specific cases without offending
contemporary standards of decency. The murders of three women in Cheshire were at
the time very fresh in the public mind. The Democrat dominated General Assembly
wanted to retain the death penalty for Joshua Komisarjevsky and Steven Hayes,
both of whom had recently been sentenced to death after tortuous legal proceedings.

Their crime was particularly heinous. The paroled prisoners
battered Dr. William Petit with a baseball bat, tied him up in the basement of
his house, restrained three women, a mother and her two daughters, upstairs,
forced the mother to withdraw money from a bank, raped the mother and a
daughter, tied the two daughters to beds and murdered all their victims by
setting fire to the house. That multiple murder truly offended contemporary
standards of decency.

Briefly, the politically timid General Assembly should have abolished the death
penalty retrospectively – to include the 11 Death Row inmates – because it
is a violation of the natural law to impose a punishment upon a convicted
offender AFTER the law had been repealed. The state must have a warrant for
punishment, and when the warrant – the law prescribing capital punishment – has
been repealed, it is indecent, illegal, unconstitutional and an offense against
natural law to impose a penalty in the absence of a positive law prescribing
punishment.

None of these points were urged upon the Connecticut Supreme
Court by those charged with representing the interests of the prisoners on
Death Row. Abolitionists had other rabbits to hunt.

The General Assembly wanted to repeal the death penalty
without adopting measures that undoubtedly would have made it impossible for
them to pass the abolition bill. Prospective abolition was dictated entirely by
politics – and not a just consideration of the matter. Connecticut’s High
Court, predictably, did not want to disappoint legislative ambitions, and so
the Court produced a ruling highly
attenuated and, as three of the justices rightly said at the time,
“fundamentally flawed.”

When you mix politics and jurisprudence, you get mud. The
addition to the High Court of former co-chair of the General Assembly’s
Judiciary Committee Andrew McDonald has further politicized and muddied a court
that in the past has shown abject deference to left-wing politicians such as …
well, Andrew McDonald, who, along with co-chair of the Judiciary Committee Mike
Lawlor, now Connecticut’s prison czar, was principally responsible for the
cowardly abolition of the death penalty in the General Assembly. Mr. McDonald
should have recused himself from any Court decision affecting the death
penalty. In a world governed by common sense and constitutional restraint,
foxes are not generally permitted both to fashion and later rule on laws
governing access to hen houses.